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ELRCPartially AllowedCause No 1348 of 2014· [2018] KEELRC 311 (KLR)

Okwaro J. L. Loroi v Dickson Muzungu & 3 others [2018] KEELRC 311 (KLR)

Employment and Labour Relations Court of Kenya at Nairobi
30 November 2018
1,259 words in judgment
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The bottom line

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A Kenyan court ruled an employer must prove it tried to contact a worker before calling it desertion; failing that, the dismissal was unfair.

What this practically means

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Executive summary

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The claimant, a lorry driver employed by the 1st respondent at a monthly salary of Kshs 15,000, sued following an incident on 10th June 2013 in which goods were found in his truck at EABL premises in Ruaraka, leading to his arrest and detention at Kasarani Police Station. He alleged that the 3rd and 4th respondents made false and malicious reports to the police, and that the 1st respondent verbally terminated his employment without notice or verification, and without paying terminal dues. The 1st respondent denied involvement in the arrest, contending that after release the claimant sought financial assistance of Kshs 15,000 (which was given), after which he never returned to work and was presumed to have deserted employment. The court removed the 2nd and 4th respondents from the suit as wrongly joined, there being no employer-employee relationship with the claimant. On the merits, the court found it common ground that the claimant worked for the 1st respondent from October 2012 to June 2013 (approximately 9 months) and that attempted theft goods were found in his truck. It held that on an allegation of desertion, the employer bears the burden of showing efforts made to contact the employee to resume duty; the 1st respondent produced no such evidence, making the claimant's account of being refused access more plausible. Since the 1st respondent neither proved the reason for ending the contract nor followed the required procedure, the termination was deemed unfair under section 43(1) of the Employment Act. The court awarded one month's pay in lieu of notice (Kshs 15,000) and three months' salary as compensation (Kshs 45,000), totaling Kshs 60,000, subject to applicable taxes, with costs; other pleaded heads were disallowed for want of evidence. Judgment delivered on 30th November 2018 by Abuodha Jorum Nelson, Judge.

Key legal issues

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01

Whether the 1st respondent proved the reason for ending the claimant's employment

Holding

The 1st respondent failed to prove the reason for termination and did not follow the required procedure; the termination was deemed unfair under section 43(1) of the Employment Act

Reasoning

The claimant was implicated in an attempted theft at EABL premises, arrested and later released without charge. When he sought to resume work he was denied access to the EABL premises. The 1st respondent claimed the claimant deserted duty but produced no evidence of any effort to contact him to resume duty. The claimant's account that he was refused entry was therefore more plausible, and the termination of the roughly 9-month employment was unfair both substantively and procedurally.

p. 2
02

Whether the 2nd, 3rd and 4th respondents were properly joined

Holding

The 2nd and 4th respondents were wrongly joined as there was no employer-employee relationship with the claimant and were removed from the suit

Reasoning

The court held that the 2nd respondent (DHL Excel Supply Chain (K) Ltd) and the 4th respondent (head of security at SABL) had no employer-employee relationship with the claimant. Their defences would not be considered and they were removed from the suit forthwith. No similar finding was made on the record regarding the 3rd respondent.

p. 1

Legal principles established

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  • On an allegation of desertion from duties, the burden is cast upon an employer to show what efforts it made to contact the employee to call them back to duty before dismissal
  • Under section 43(1) of the Employment Act, where an employer fails to prove the reason for termination, the termination is deemed unfair

Court orders

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  1. 1.Removal of the 2nd and 4th respondents from the suit forthwith as wrongly joined
  2. 2.Award of one month's pay in lieu of notice of Kshs 15,000
  3. 3.Award of three months' salary as compensation for unfair termination of service, Kshs 45,000
  4. 4.Total award of Kshs 60,000 subject to applicable taxes
  5. 5.Costs awarded to the claimant

Authorities

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Legislation

  • Employment Actsection 43(1)
Jurisdiction invoked
Employment and labour relations dispute within the jurisdiction of the Employment and Labour Relations Court; Employment Act section 43(1)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okwaro J. L. Loroi v Dickson Muzungu & 3 others [2018] KEELRC 311 (KLR)", Case Analysis (2018). Cause No 1348 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/311/eng@2018-11-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.